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The Gang of 14 was a term coined to describe the bipartisan group of Senators in the 109th United States Congress who successfully negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called nuclear option over an organized use of the filibuster by Senate Democrats.

Background

The Democrats had been using the filibuster to prevent the confirmation of conservative appellate court candidates nominated by President George W. Bush. In the Republican-controlled 108th Congress, ten Bush judicial nominees had been filibustered by the minority Democrats. The ten Bush appellate nominees who were filibustered were Miguel Estrada, Priscilla Owen, Charles W. Pickering, Carolyn Kuhl, David W. McKeague, Henry Saad, Richard Allen Griffin, William H. Pryor, William Gerry Myers III and Janice Rogers Brown.

As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what Senator Trent Lott termed the "nuclear option". This change in rules would eliminate the use of the filibuster to prevent judicial confirmation votes. However, with only a two vote majority in the 108th Congress, the Republicans were in a weak position to implement this procedural maneuver.

Things changed in 2005 due to the 2004 elections. With President Bush winning re-election by a clear margin and the Republicans picking up further Senate seats (55-45) in the 109th Congress, the "nuclear option" became a more viable strategy to ensure confirmation.

Because of the political split in the Senate at the time (55 Republicans, 44 Democrats and 1 Independent), if six Senators from each party could reach an agreement, it was realized that these twelve could both forestall the "nuclear option" and force cloture on nominees. With a cloture vote scheduled on the nomination of Priscilla Owen – the opening move in firing the nuclear option – for Tuesday, May 24, 2005, and with Senate Majority Leader Bill Frist and Minority Leader Harry Reid having evidently given up all pretense of finding a compromise (each have been accused of having desired the nuclear showdown for their own political ends), some members in both parties were focused on finding some alternative way out. In the end, seven Senators from each party got behind a compromise which stated, in essence, that Democratic filibusters would come to an end in "all but extraordinary circumstances," and the GOP would not use the nuclear option.

The Gang of 14 signed an agreement, pertaining only to the 109th Congress, whereby the seven Senate Democrats would no longer vote along with their party on filibustering judicial nominees (except in "extraordinary circumstances"), and in turn the seven Senate Republicans would break with Bill Frist and the Republican leadership on voting for the "nuclear option." As the Republicans held a five vote Senate majority (55-45) in the 109th Congress, the agreement of these Senators in practical terms prevented the Republicans from winning a simple majority to uphold a change in the interpretation of Senate rules, and prevented the Democrats from mustering the 41 votes necessary to sustain a filibuster. While thwarting the goals of their respective party leaderships the group members were hailed as moderates who put aside severe partisanship to do what was best for the Senate.

Three of the filibustered nominees (Estrada, Pickering and Kuhl) having withdrawn, in the 109th Congress, five of the seven filibustered nominees (Owen, McKeague, Griffin, Pryor and Brown) were allowed to be confirmed as a result of the deal brokered by the Gang.

The Gang became active again in July 2005, attempting to advise Bush on the choice of a nominee to replace retiring Supreme Courtmarker Justice Sandra Day O'Connor. On November 3, 2005, the group met to discuss the nomination of Samuel Alito to the high court, but came to no conclusions, noting that the hearing process had only just begun in his case. On January 30, 2006, the members of the group unanimously supported a cloture vote in the Alito nomination, providing more than enough votes to prevent a filibuster.

Members

Image:Lincoln Chafee official portrait.jpg|Lincoln Chafee (R-RImarker) (no longer serving)Image:Sen Susan Collins official.jpg|Susan Collins (R-MEmarker)Image:Mike DeWine official photo.jpg|Mike DeWine (R-OHmarker) (no longer serving)Image:Lindsey Graham, official Senate photo portrait, 2006.jpg|Lindsey Graham (R-SCmarker)Image:John McCain official portrait 2009.jpg|John McCain (R-AZmarker)Image:Olympia Snowe, official photo 2.JPG|Olympia Snowe (R-MEmarker)Image:Warner(R-VA).jpg|John Warner (R-VAmarker) (no longer serving)Image:Robert Byrd official portrait.jpg|Robert Byrd (D-WVmarker)File:Daniel Inouye, official Senate photo portrait, 2008.jpg|Daniel Inouye (D-HImarker)Image:Mary Landrieu, official photo portrait, 2007.jpg|Mary Landrieu (D-LAmarker)Image:Joe Lieberman official portrait 2.jpg|Joe Lieberman (D-CTmarker) (currently an independent)Image:Ben Nelson official photo.jpg|Ben Nelson (D-NEmarker)Image:Mark Pryor, head and shoulders photo portrait with flag, 2006.jpg|Mark Pryor (D-ARmarker)File:Kensalazar.jpg|Ken Salazar (D-COmarker) (no longer serving)

The text of the Deal

Initial results of the Gang Deal

As a result of the agreement, Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45. The two nominees who were not specifically guaranteed cloture in the agreement, William Myers and Henry Saad, both later withdrew. Myers of Idaho was opposed by the Democratic leadership because of the perceived anti-environmental bias of his work as the solicitor general of the United States Department of the Interiormarker and as the deputy general counsel of the United States Department of Energy. Saad of Michigan, on the other hand, was opposed by his two Democratic homestate senators, Carl Levin and Debbie Stabenow, because he had angered Stabenow in September 2003 by sending out an e-mail critical of her participation in his original filibuster. In the e-mail, Saad wrote to a supporter about Stabenow, "This is the game they play. Pretend to do the right thing while abusing the system and undermining the constitutional process. Perhaps some day she will pay the price for her misconduct." Stabenow became aware of the e-mail when Saad accidentally sent it not only to the supporter but also to Stabenow's office. .

The immediate and proximate political result of the agreement was the curtailing of Democratic filibusters and the short-term end to the "nuclear option" debate. Three judicial nominees not explicitly mentioned in the original Gang deal were confirmed under its provisions: David W. McKeague, Richard Allen Griffin and Thomas B. Griffith.

Sen. Orrin Hatch at the time characterized the deal as "a truce, not a ceasefire", and the potential for a resumption of hostilities was obvious to everyone. The compromise purported to rule out Democratic filibusters in "all but extraordinary circumstances", yet the day after the compromise was announced, Democratic Minority Leader Harry Reid provocatively announced in a speech on the Senate floor that in his view, the Democrats were already using the filibuster in only "extraordinary circumstances". Equally, a provocative attempt by Sen. Carl Levin to shut the door on the nuclear option by obtaining a ruling from the chair – at that moment, Senator John E. Sununu – that the filibuster had been yielded as constitutional by the compromise, failed; the Republican leadership, thus, retained the nuclear option. Consequently, moderates on both sides were able to claim victory, and partisans on both sides were able to avoid defeat.

The compromise was further tested by the confirmation battle over the nomination of Samuel Alito to the Supreme Court to fill the vacancy left by Sandra Day O'Connor's retirement. A number of Democratic senators attempted a filibuster; however, the entire Gang of 14 voted for cloture, which passed by 72 to 24 (with 60 "aye" votes needed to end the filibuster). Several members of the Gang of 14 then voted against confirming Alito, including Republican Lincoln Chafee.

The filibuster revisited in the 109th Congress

In April 2006, Senate Republicans began pushing for the confirmation of two controversial conservative court of appeals nominees who had not been included in the Gang of 14 deal of 2005, district court judge Terrence Boyle and White House aide Brett Kavanaugh. Boyle had been first nominated to the Fourth Circuitmarker in 2001 and Kavanaugh to the D.C. Circuit in 2003. Senate Democratic leader Harry Reid immediately expressed concern over both nominees , threatening to possibly filibuster each one. On May 3, 2006, the seven Democratic members of the Gang of 14 wrote a letter to the Senate Judiciary Committee requesting a second hearing for Kavanaugh. That request was granted the next day. . On Tuesday, May 9, Kavanaugh appeared before the Senate Judiciary Committee for his second hearing. Later that same day, the Gang of 14 met to discuss his nomination as well as the nomination of Boyle which had become embroiled in a debate concerning Boyle's failure to recuse himself in several cases. After the meeting, South Carolina senator Lindsay Graham declared that he saw no "extraordinary circumstances" concerning Kavanaugh's nomination. However, several Republican members of the "Gang" refused to address the status of Boyle. The Democratic members said they would request a second hearing for Boyle like they had done earlier for Kavanaugh . On Thursday, May 11, Kavanaugh was voted out of committee on a party line vote of 10-8 Two weeks later on Thursday, May 25, cloture was invoked on Kavanaugh by a vote of 67-30 with all but two members of the Gang of 14 voting to end debate . Senator Inouye voted against invoking cloture, and Senator Salazar did not vote. The next day, Kavanaugh was confirmed to the D.C. Circuit by a vote of 57-36 . All of the Republicans and three of the Democrats (Byrd, Landrieu and Nelson) in the Gang voted for confirmation.

Before the Boyle nomination could be addressed, a controversy arose about the nomination of William Haynes, the general counsel of the Department of Defensemarker, to be an appellate judge on the Fourth Circuitmarker. When it was revealed that Republican senator Graham might be holding up Haynes's nomination in committee due to concerns about Haynes' participation in the formulation and implementation of certain torture guidelines suggested by the Bybee memo, there was a conservative uproar. Conservative leaders began applying pressure on Graham in order to get Haynes confirmed . Graham responded to his critics with a letter explaining his position on the nomination . Eventually, Haynes was granted a second hearing like Kavanaugh had been before him. Two days after the July 11 hearing, the Gang met to discuss Haynes' nomination. Their initial response did not seem positive.

Before any further action could be taken on Haynes, however, his nomination (as well as those of four other controversial appellate nominees including Boyle and previously filibustered nominee William Myers) was returned to the White House according to Senate rules on August 3, 2006 in advance of the annual August recess of Congress. When the Senate returned in September, it was only for a short period before a break for the 2006 midterm election. Although Boyle, Myers and Haynes were renominated, again no action was taken on them in the Senate Judiciary Committee before the break, and their nominations were sent back a second time to the White House on September 29 .

The impact of the Gang on the 2006 Election

Although strongly criticized by both Democratic and Republican partisans at the time , the compromise was successful in precluding further judicial filibusters or the use of the nuclear option during the rest of the 109th Congress. As noted before, the Gang of 14 deal was instrumental in permitting Supreme Court nominee Samuel Alito an up-or-down vote, as his vote for confirmation (58 for to 42 against) would not have been adequate to overcome a party-line filibuster (i.e. did not equal or exceed 60 votes). The 2006 elections, however, saw Republican members Lincoln Chafee (R-Rhode Islandmarker) and Mike DeWine (R-Ohiomarker) replaced by Democrats Sheldon Whitehouse and Sherrod Brown, respectively. Tolerance for Bush's judicial nominees was among the criticism the Democratic winners leveled against their incumbent Republican opponents, and the elections as a whole handed control of the Senate to the Democrats.

After the November 7, 2006 election in which Democrats picked up six additional Senate seats in the 110th Congress, President Bush again renominated the six candidates whose nominations had been sent back to him in September. The Judiciary Committee chairman, Senator Specter, however, said that he would not process these nominees during the lame duck session of the 109th Congress.

Epilogue

In the 110th Congress, the Democrats possessed a 51-49 majority in the Senate. With the Democrats in control, the purpose of the Gang of 14 disappeared. Realizing that the Democrats no longer needed to resort to the filibuster to block judicial nominees, President Bush attempted to reconcile with the Senate Democrats by not renominating Boyle, Myers and Haynes in January 2007.. As the new majority party, the Senate Democrats easily blocked several conservative appellate judicial nominees during the 110th Congress using traditional methods. Conservative appellate nominees like Peter Keisler, Robert J. Conrad and Steve A. Matthews were blocked in committee and never given a hearing. If a Supreme Court justice had chosen to retire during the 110th Congress, it would have been just as easy for the Democrats to have blocked his replacement in committee. Even if the replacement nominee had made it out of committee, then the Democrats still could have defeated him with a party-line vote. As it developed, no Supreme Court justice retired or died during the 110th Congress.

On November 17, 2009, two members of the Gang of 14 - Senators McCain (R-AZ) and Graham (R-SC) - voted against the motion to invoke cloture on the nomination of David Hamilton , President Obama's pick for the a vacant seat on the Seventh Circuit. At the time, neither Senator linked his vote to the "extraordinary circumstances" standard announced in the Gang's original agreement. Senator Graham indicated that he thought that Judge Hamilton's views were "so far removed from the mainstream" that a vote against cloture was warranted.

See also



References

  1. Frist, Reid Lost When Gang of 14 Took Over from the Cook Political Report
  2. Harry Reid Steps Over the Line — Again from National Review
  3. The Gang of 14 to be Tested the Influence Peddler blog
  4. Reid mulls filibuster of judicial nominees from the Boston Globe
  5. Micros
  6. Gang Of 14 Split On Kavanaugh?
  7. Kavanaugh to reappear before Senate Judiciary Committee from The Examiner
  8. Saturday Nomination Stuff from ConfirmThem.com
  9. Kavanaugh Nomination Headed to Senate Vote
  10. Bench Memos from National Review
  11. Kavanaugh Confirmed to for D.C. Circuit Court of Appeals from TheRealUglyAmerican.com
  12. Can we spare Lindsay Graham? He fights! from Redstate.com
  13. Administration playing dress-up with judicial nominee Haynes from the TheBlueState.com
  14. [1]
  15. NOMINATIONS FAILED/RETURNED from the United States Senate
  16. Bush Drops Plans to Renominate 3 Judges from the New York Times
  17. U.S. Senate, 111th Congress, 1st Session, Roll Call Vote Number 349
  18. Graham Opposes Hamilton Nomination, Press Release by Senator Graham, Nov. 18, 2008


External links

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